107 F.

3d 880
97 CJ C.A.R. 406
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Pat HAYES, Plaintiff-Appellant,

v.
CORRECTION MANAGEMENT AFFILIATES INC.,
Defendant-Appellee.
Nos. 95-6449, 96-6030.

United States Court of Appeals, Tenth Circuit.

March 13, 1997.

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.

1ORDER AND JUDGMENT*

2

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of these appeals. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cases are
therefore ordered submitted without oral argument.

Plaintiff-appellant Pat Hayes, appearing pro se, appeals the district court's
summary judgment in his action against his former employer, Correction
Management Affiliates, Inc., and the district court's denial of his motion to
amend the judgment. We affirm.

On March 10, 1992, plaintiff was dismissed from his position as a probationary
employee of Correction Management Affiliates, Inc. He filed a complaint with
the Equal Employment Opportunity Commission and received a right to sue
letter on February 7, 1994. Plaintiff filed his first employment discrimination

action on May 10, 1994. This action was dismissed on December 6, 1994, for
failure to comply with the requirements of Rule 4(m) of the Federal Rules of
Civil Procedure. We affirmed the dismissal in Hayes v. Correction
Management Affiliates, Inc., No. 95-6060, 1995 WL 761802 (10th Cir. Dec.
27, 1995), cert. denied, 117 S.Ct. 209 (1996).
5

Plaintiff filed this second action against his former employer on March 10,
1995, alleging that he was terminated in violation of the Age Discrimination in
Employment Act, 29 U.S.C. 623, and that his termination violated Oklahoma
public policy, breached an implied contract, and constituted fraud. The district
court granted the employer summary judgment on plaintiff's age discrimination
and public policy claims based on their respective statutes of limitations.
Summary judgment was granted on the fraud claim because there was no
evidence that plaintiff relied on any allegedly false statements by the employer,
and on the breach of implied contract claim because the undisputed evidence
showed that the employer complied with all relevant policies. The district court
declined to amend its judgment, and these appeals followed.

We review a grant of summary judgment de novo, applying the same standards

as those used by the district court. Universal Money Ctrs., Inc. v. American Tel.
& Tel. Co., 22 F.3d 1527, 1529 (10th Cir.1994). Summary judgment is
appropriate if "there is no genuine issue as to any material fact and ... the
moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
We examine the record and reasonable inferences therefrom in the light most
favorable to the nonmoving party. Applied Genetics Int'l, Inc. v. First Affiliated
Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

After reviewing plaintiff's pleadings, we find no argument that his age

discrimination and public policy claims were filed within the time permitted by
their respective statutes of limitations. The summary judgment on these claims,
therefore, is affirmed.

Plaintiff raises several arguments that, construed liberally, relate to his breach
of implied contract and fraud claims. He argues first that he was entitled to a
judgment in his favor on these claims because the employer failed to respond to
his "Answer to Defendant's Answer to Plaintiff's motion for Summary
Judgment." This answer, however, is not the type of "motion, application or
objection" which the court may deem confessed if not responded to within
eighteen days. See United States District Court for the Western District of
Oklahoma Local Rule 7.1(e). The employer, in fact, was not entitled to respond
to plaintiff's answer without leave of the court. See id., Local Rule 7.1(g).

Plaintiff next argues that the employer committed fraud by informing the
EEOC and this court that plaintiff was dismissed for misconduct under Policy
A-155-R, when he was actually dismissed under Policy A-260-R, and that
Policy A-260-R entitled him to a hearing, thus supporting his claim for breach
of an implied contract. Policy A-260-R only governs performance appraisals,
however, and the appeal rights contained therein pertain only to such appraisals.
Because Policy A-155-R governs dismissals for misconduct, and does not
entitle a probationary employee to an appeal, no error occurred.

10

Finally, plaintiff argues that the employer is precluded from arguing that he
was dismissed for misconduct under Policy A-155-R, based on the Oklahoma
Employment Security Commission's finding that plaintiff was not disqualified
for unemployment benefits by a dismissal for misconduct under title 40, section
2-406 of the Oklahoma Statutes. "However, misconduct to deny unemployment
benefits is not the same as [reasons justifying] termination from employment."
Doby v. Oklahoma Employment Sec. Comm'n, 823 P.2d 390, 392
(Okla.Ct.App.1991). Because Policy A-155-R defines "misconduct" to include
incompetence, inefficiency, and neglect of duty, which do not constitute
"misconduct" under title 40, section 2-406 of the Oklahoma Statutes, see Tynes
v. Uniroyal Tire Co., 679 P.2d 1310, 1312 (Okla.Ct.App.1984) (quotation
omitted), the Commission's finding is not implicated. Further, under title 40,
section 2-610A of the Oklahoma Statutes, the Commission's finding is "not ...
conclusive or binding in any separate or subsequent action ... between an
individual and his ... prior employer in any other forum." The employer,
therefore, is not precluded from showing that plaintiff was dismissed for
misconduct under Policy A-155-R, and summary judgment was appropriate.

11

The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED. The mandate shall issue forthwith.

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3